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Florida Probate Blog

The Law Offices of Adrian Philip Thomas

Mediation and Settlement Agreements

Written by on Oct 13, 2015| Posted in: General

Misrepresentations by Tortfeasor During Mediation: Fool Me Once… So you’ve sued someone for undue influence, tortious interference with expectancy of inheritance or a similar tort grounded upon fraud. It is well-settled in Florida that such causes of action are based upon fraud and must be pled with specificity. Although the Florida Supreme Court did acknowledge in In re Carpenter’s Estate, 253 So.2d 697 (Fla. 1971) that undue influence by its very nature is committed in secret and thus is not susceptible to direct proof, plaintiffs are faced with another dilemma when trying to settle undue influence cases at mediation: “What else did the defendant do that we don’t know about?” Deciding whether and upon what terms to settle a case is often difficult enough, so the unknown only makes it even more difficult when contemplating whether to give the defendant a full general release. While Florida law does provide a […]

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DeWitt and the Importance of Adequate Probate Remedies

Written by on Oct 6, 2015| Posted in: Estate Litigation

When is “failure to exhaust probate remedies” properly asserted as an affirmative defense to a tortious interference with an expectancy action?  The answer is almost never.  (Click here for information about the tort action.) The Dewitt v. Duce, 408_So.2d_216, (Fla. 1981), holding can be paraphrased as follows:  The State of Florida has an interest in the orderly succession of property and therefore prefers that a dispute concerning a decedent’s property be conducted in probate shortly after the decedent’s death rather than in a civil action years later.  Therefore, if you can achieve exactly the same result with a Will contest that you could with a tortious interference law suit, then you must chose the Will contest.  If you do not chose the Will contest, then you will be unable to sue for tortious interference later for one simple reason:  “The probate of a Will in Florida is conclusive of its due […]

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Reasonably Ascertainable Creditors

Written by on Oct 5, 2015| Posted in: General

How long does a creditor have to file a claim in the probate estate? Many clients ask how long it takes for an estate to be completely administered.  The answer is: it depends. One of the several factors that will affect the timeframe is how many and what type of creditor claims are filed in the estate.  Once a creditor claim is filed, the estate (through the personal representative) must properly address the claim. Fla. Stat. §733.701 states that every personal representative must publish and serve a notice to creditors.  This notice to creditors will place any prospective creditor of an estate on notice that they have a certain time period within which to file a claim.  If the creditor does not timely file a claim, it will be forever barred and that creditor cannot recoup any funds from the estate. Therefore, the essential question that every personal representative and […]

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Qualified Renunciation

Written by on Aug 19, 2015| Posted in: General

Part II As we’ve previously written about on this blog, while one of the pleading requirements for a Will Contest or Trust Contest in Florida is a general allegation in the complaint that the contestant renounces any benefit he or she receives under the challenged document, “qualified renunciation of benefits” is a technical pleading requirement, and equity does not require actual return of benefits received in every situation. See, Qualified Renunciation) Last July we blogged about Fintak v. Fintak, 120 So.3d 177 (Fla. 2d DCA 2013), a case in which the court refused to apply the renunciation rule to allow for the dismissal of a claim made by a beneficiary who had received benefits that he would have received regardless of the instruments he was attacking. The rationale behind the Fintak decision was that the contestant did not receive under the challenged document “a benefit to which he would not be entitled […]

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Change in Statutory Duty of Un-Qualified Personal Representatives

Written by on Aug 18, 2015| Posted in: General

When a person dies, with or without a last will and testament, there is a high probability that the person who died (the “Decedent”) will have left behind obligations that must be fulfilled and other matters that must be addressed before their property can be distributed. The property that a Decedent leaves behind when he or she dies and which is the subject of administration in probate court makes up what is called the “estate.” §731.201(14), Fla. Stat. (2015). Just like a business needs a manager to run its day-to-day operations, an estate needs a manager to finish handling the Decedent’s affairs so that the estate may be distributed, either according to the terms of the Decedent’s last will and testament or under the laws of intestacy. In Florida, the person who is charged with managing, or “administering,” the Decedent’s estate is called the “Personal Representative.” §731.201(28), Fla. Stat. (2015). […]

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Can a guardian change the trustee of a ward’s trust?

Written by on Jul 27, 2015| Posted in: Guardianship Litigation

Choosing someone to act as your successor trustee upon your death or incapacity is not a decision that you should take lightly. Not only does that nominated successor trustee have a duty and obligation to carry out your wishes, but that trustee also has a fiduciary obligation to act prudently and appropriately for the benefit of the subsequent beneficiaries. However, what if that nominated successor trustee turns out to be a bad choice? What if the settlor of the trust is determined to be incapacitated and cannot alter the terms of the trust? The 5th District Court of Appeals of Florida in Rene v. Sykes-Kennedy, 156 So.3d 518 (Fla 5th DCA 2015) recently dealt with such an issue wherein a person who created a revocable trust was subsequently determined to be incapacitated. The person had nominated a granddaughter to serve as the successor trustee of the trust upon the person’s […]

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Can a contract defeat testamentary intent?

Written by on May 26, 2015| Posted in: Estate Litigation

In a word, yes. In a blow to the unwed in the State of Florida, the Fourth District Court of Appeal recently held that an operating agreement entered into by a deceased business owner (the “Decedent”) trumped his stated testamentary intent to provide his longtime girlfriend with a lifetime payment of $5,000.00 per month, which was to be paid out of distributions from the company the Decedent formed with his sister.  Blechman v. Estate of Blechman, 160 So.3d 152 (Fla. 4th DCA 2015).  Despite the fact that the Decedent in Blechman had amended his trust to “to provide a ‘specific gift’ of his residence and ‘one half of the distributions from [his company], to’ a trustee for the benefit of  the Decedent’s girlfriend,” the Court refused to uphold the trial court’s order, which would have ensured the Decedent’s girlfriend received the $5,000.00 per month gift the Decedent’s estate plan provided. […]

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Florida Court Determines Wife Unduly Influenced Husband

Written by on May 8, 2015| Posted in: Probate Litigation

Florida law is well established that when a will is challenged on the grounds of undue influence, the influence must amount to over persuasion, duress, force, coercion, or artful or fraudulent contrivances to such an extent that there is a destruction of free agency and willpower of the testator.   As probate litigators, we frequently encounter situations where a court is presented with circumstances suggesting that a elderly person has unfortunately been taken advantage of by their own spouse.  Most often the wrongdoer is a person who marries the victim just prior to death and changes the victim’s estate plan to disinherit family members who were previously the intended beneficiaries of the victim’s long standing estate plan. One such case was recently presented in Palm Beach County, Florida where the court upheld the challenge by a testator’s daughter who sought to invalidate the will that was executed a year after the […]

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BUT YOU AGREED TO MAKE ME THE BENEFICIARY!

Written by on Apr 14, 2015| Posted in: General

Whether in the context of a divorce proceeding or when a couple is preparing their estate planning together, some people agree to a contract to subsequently make a Will or Trust that names another as the primary beneficiary.  This primarily (but not always) takes place when a married couple enters into a prenuptial or postnuptial agreement and in said agreement, they each agree that they will each sign a Will that makes the other person a beneficiary. What if in this agreement, they both agree that they will never revoke or amend such a Will regardless of divorce?  What if one of them changes the Will after the divorce?  What happens when that person dies? Florida Courts have dealt with similar situations and have held that such an irrevocable contract to make a Will can be made binding and damages may be sought against the breaching party’s estate.  In Boyle […]

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